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Document Details

We will consider all comments that we receive on or before October 9, 2007.

Comments Close:

10/09/2007

Document Type:

Proposed Rule

Document Citation:

72 FR 44425

Page:

44425-44433
(9 pages)

CFR:

7 CFR 319

Agency/Docket Number:

Docket No. 03-002-4

RIN:

0579-AC55

Document Number:

E7-15421

Document Details

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Start PreambleStart Printed Page 44425

AGENCY:

Animal and Plant Health Inspection Service, USDA.

ACTION:

Proposed rule; withdrawal and reproposal.

SUMMARY:

We are proposing to amend the regulations on importing nursery stock by providing an option in which the postentry quarantine growing period for articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that are imported from certain locations would be reduced from 6 months to 2 months, provided that the grower of those plants has implemented a systems approach to prevent the imported articles from being infected with chrysanthemum white rust. This proposal replaces part of a previous proposal that would also have provided an option in which the length of the postentry quarantine period for potential hosts of chrysanthemum white rust would have been reduced provided that the grower entered into a disease-prevention program. We are issuing this reproposal to further discuss the evidence that led us to conclude that a 2-month postentry quarantine period is adequate and to clarify how the systems approach would work. We are also proposing to amend the definition of from. The definition proposed in this document would replace the definition of from that was included in a previous proposal. We are proposing the new definition in response to concerns raised by comments on the previous proposal.

DATES:

We will consider all comments that we receive on or before October 9, 2007.

ADDRESSES:

You may submit comments by either of the following methods:

Federal eRulemaking Portal: Go to http://www.regulations.gov, select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click “Submit.” In the Docket ID column, select APHIS-2005-0081 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link.

Reading Room: You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 690-2817 before coming.

Other Information: Additional information about APHIS and its programs is available on the Internet at http://www.aphis.usda.gov.

SUPPLEMENTARY INFORMATION:

Background

The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of plant pests. The regulations contained in “Subpart—Nursery Stock, Plants, Roots, Bulbs, Seeds, and Other Plant Products,” §§ 319.37 through 319.37-14 (referred to below as the regulations), restrict, among other things, the importation of living plants, plant parts, and seeds for propagation.

The regulations in § 319.37-7(a) designate as restricted articles any articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that meet the conditions for importation in § 319.37-5(c) and that are imported from any foreign locality except Andorra, Argentina, Australia, Belarus, Bosnia and Herzegovina, Brazil, Brunei, Canada, Canary Islands, Chile, China, Colombia, Croatia, Ecuador, Iceland, Japan, Korea, Liechtenstein, Macedonia, Malaysia, Mexico, Moldova, Monaco, New Zealand, Norway, Peru, Republic of South Africa, Russia, San Marino, Switzerland, Taiwan, Thailand, Tunisia, Ukraine, Uruguay, Venezuela, Yugoslavia; the European Union (Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and United Kingdom); and all countries, territories, and possessions of countries located in part or entirely between 90° and 180° East longitude. Articles designated as restricted articles in § 319.37-7(a) must be grown in postentry quarantine under the conditions described in paragraphs (c) and (d) of § 319.37-7. Paragraph (d)(7)(ii) currently requires restricted articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum to be grown in postentry quarantine for a period of 6 months.

The pest of concern with regard to imported articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum is chrysanthemum white rust (CWR). CWR is caused by Puccinia horiana Henn., a filamentous fungus and obligate parasite. CWR is not established in the United States and is a disease of quarantine significance. This disease has the potential to be extremely damaging to the commercial horticulture and florist industries if it becomes established in the United Start Printed Page 44426States. The postentry quarantine growing period for articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum is intended to allow symptoms of the disease, if it is present, to express themselves, so that any restricted articles that are affected with CWR can be prevented from entering U.S. commerce.

On December 15, 2005, we published in the Federal Register (Docket No. 03-002-1, 70 FR 74215-74235) a proposal [1]
to make several amendments to the nursery stock regulations. We solicited comments concerning the proposal for 60 days ending February 13, 2006. We reopened and extended the deadline for comments until March 31, 2006, in a document published in the Federal Register on February 28, 2006 (71 FR 9978, Docket No. 03-002-2).

Among the changes discussed in the December 2005 proposal was providing an option in which the postentry quarantine growing period for articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum would be reduced from 6 months to 2 months if the articles were grown in accordance with a best management practices program approved by the Animal and Plant Health Inspection Service (APHIS). The Plant Protection and Quarantine (PPQ) program had evaluated the available scientific literature and found that 2 months was an adequate amount of time for CWR to express itself in postentry quarantine; we proposed to require the best management practices program as an additional safeguard.

We received 25 comments on the proposed rule, from 23 commenters, including private citizens, State and local governments, industry organizations, individual industry companies, and foreign national plant protection organizations. Sixteen of these commenters addressed the proposed change to the postentry quarantine requirements for articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum. While many commenters supported the change, many commenters were confused regarding whether the best management practices program was intended to apply to production in the country of origin or to postentry quarantine in the United States. In addition, some commenters disputed our conclusion that 2 months is an adequate amount of time for symptoms of CWR infection to be expressed in postentry quarantine.

To address these comments, we are withdrawing that portion of the December 2005 proposal that dealt with postentry quarantine for imported articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum. We are replacing it with this proposal, which discusses in greater detail the evidence that leads us to conclude that a 2-month postentry quarantine period for imported articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum is adequate. This proposal also presents new requirements for the systems approach that more clearly indicate that they apply to growing in the country of origin. We are also explaining in more detail how the systems approach would be used. (We used the term “best management practices program” to describe the intended program in the December 2005 proposed rule. We are replacing it with the term “systems approach” in this reproposal to clarify our terminology.)

We discuss the postentry quarantine period and the requirements of the systems approach in detail directly below.

Evidence Supporting Reducing the Postentry Quarantine Period for Articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum From 6 Months to 2 Months

In the December 2005 proposed rule, we stated the following: “PPQ's Center for Plant Health Science and Technology has reviewed the available evidence regarding the time within which CWR will express symptoms. Although substantial evidence indicates that articles affected with CWR will express symptoms within 2 months, meaning that 2 months would be an adequate postentry quarantine period for these articles, not all the available evidence confirms that.”

We received several comments on our statement that 2 months would be an adequate postentry quarantine period for these articles. The issues raised by these commenters are described below.

Four commenters strongly supported all aspects of the proposal, including our determination that a 2-month postentry quarantine period was sufficient to allow expression of CWR in articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum. One of these commenters reviewed the available literature and concluded that most available studies indicate that CWR is expressed in normal conditions within 2 weeks, with an upper limit of 2 months in extreme conditions such as high temperatures or massive inoculations in a research setting.

This commenter also noted that, in the June 2002 version of the APHIS document “Chrysanthemum White Rust: A National Management Plan for Exclusion and Eradication,” we stated that in the event that a nursery is found to be infected with CWR, no plant should leave the nursery for 8 weeks or until the nursery has been inspected and certified as being free of CWR. The current version of this document provides for an 8-week host-free period at any nursery at which plants are found to be infected with CWR. The commenter indicated that this document supports the statement that the 2-month postentry quarantine is adequate for expression of CWR symptoms.

Two more commenters supported the proposed reduction in the postentry quarantine period on the condition that the reduction was based on science.

Three commenters were concerned about our statement that not all the available evidence confirms that CWR is expressed in postentry quarantine within 2 months, asking us to discuss any evidence that might show that a longer postentry quarantine period is necessary for the expression of CWR.

Seven commenters took issue with the proposed reduction in the postentry quarantine period for articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum. Five of these commenters stated that, under certain environmental and climatic conditions, CWR would not be expressed in a 2-month postentry quarantine period; they stated that the disease cycle of CWR requires cool, wet conditions in order to exhibit its symptoms. One commenter stated specifically that basidiospores (airborne spores) of the CWR fungus are produced and released during periods of relatively high humidity and when temperatures are between 40 °F and 73 °F, with optimum expression at 63 °F. In southern California, these cool temperatures occur only from November through June. Even using APHIS-approved best management practices, the commenter stated, the conditions necessary for CWR infections could not be created in a greenhouse during the hot summer months. Under the December 2005 proposal, stated the commenter, cuttings infected with CWR Start Printed Page 44427could conceivably be imported in July and released 2 months later in September and never show any symptoms, because climatic conditions at that time of year preclude symptoms from being exhibited.

Based on these comments, we again reviewed the available evidence regarding the expression of CWR. Our statement in the December 2005 proposal that “not all the available evidence confirms” that 2 months is an adequate postentry quarantine period for CWR hosts was incorrect. The longest time between infection and symptom development that has been reported is 8 weeks. This was reported to have been achieved when infected cuttings were experimentally exposed to 86 °F (30 °C) temperatures for several hours, in an effort to simulate hot climatic conditions. However, efforts to reproduce this effect experimentally have been unsuccessful, and it has not been reported in the field.

Most references on CWR concur that the disease usually expresses itself in between 5 to 14 days, depending on the prevailing climatic conditions. Warm temperatures increase the latency period, but in most cases not beyond 14 days, and we are not aware of any reports describing increases in the latency period beyond 2 months. The commenter who stated that CWR requires cool temperatures for expression, and thus that warm temperatures will delay expression of the disease indefinitely, did not provide a reference to support that statement, and we have been unable to locate any references confirming it. We invite commenters to submit any additional information that may be pertinent to this subject.

We would also like to clarify the difference between the purpose of the 8-week host-free period in our CWR management plan and the time necessary for expression of symptoms of CWR in postentry quarantine. Teliospores of P. horiana can survive for up to 8 weeks in favorable climatic conditions on the leaves of CWR hosts, even in the absence of living plants. Keeping premises free of host plants for at least 8 weeks ensures that all the teliospores in the premises die, making it safe to repopulate the premises with CWR hosts. By contrast, the postentry quarantine period is not used to ensure disease freedom at a premises, but rather to determine whether potential hosts are infected with CWR. If a living plant is infected with CWR (either with teliospores or the shorter lived basidiospores), the disease will express itself within 5 to 14 days under normal conditions. The period required for eradication of CWR from a premises and the postentry quarantine period we are proposing are of similar length, but they have no relationship to each other.

While 2 months appears to be an adequate postentry quarantine growing period for CWR hosts, we would require that CWR hosts grown in postentry quarantine for 2 months also be produced under a systems approach. We would include this additional safeguard because of the danger CWR presents to the domestic floral industry. Efforts to eradicate CWR outbreaks in the United States have been costly for growers, who typically must destroy all plants within a 1-meter radius of any infected plant, treat the entire production site to neutralize any remaining CWR spores, and implement a host-free period to prevent reintroduction of the rust. In a 2006 outbreak of CWR in California, the estimated cost per acre of implementing the host-free period alone was $54,594. Given that the entire production site must implement the host-free period in order to eradicate CWR, the eradication costs to producers can be considerable. The requirements of the systems approach would provide additional assurance that CWR-infected plants would not be introduced into the United States under the 2-month postentry quarantine period.

One commenter additionally objected to the proposed 2-month postentry quarantine period as too short to allow for the necessary inspection of the plants being grown in postentry quarantine. This commenter stated that postentry quarantine inspections are usually conducted in spring and fall to increase the chances of finding a quarantine pest. Under the December 2005 proposal, the commenter stated, an importer could conceivably time the importation of cuttings to essentially avoid inspection. In this commenter's experience, when plants are imported for postentry quarantine, 2 or more months may pass before authorities at the local level receive notification from APHIS that the plants have arrived in the area. With a 2-month postentry quarantine period, the commenter stated, the material may have been shipped throughout the United States before local authorities have been notified that it was imported and before they have had a chance to conduct an inspection.

The regulations in § 319.37-7(c) set out requirements for the postentry quarantine agreements that APHIS concludes with States. Under paragraph (c)(3)(iii), the Administrator is required to notify State officials, in writing and within 10 days of the arrival, when plant material destined for postentry quarantine in their State arrives in the United States. Under paragraph (c)(2)(iii), States are required to provide the services of State inspectors to inspect plants for evidence of exotic pests at least once for plants required to be grown in quarantine for less than 2 years. After this, again under paragraph (c)(3)(iii), the Administrator shall notify State officials in writing when materials in postentry quarantine may be released from quarantine in their State. We do not notify State officials that materials in postentry quarantine may be released from quarantine until we have received the results of the State inspection of the materials. If an importer removes plant material in postentry quarantine from the approved site before the Administrator notifies State officials that it may be released, then that importer is in violation of the regulations.

Two other commenters objected generally to what they perceived as the loosening of restrictions on the importation of articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum, given that CWR outbreaks continue to occur occasionally in the United States. In these commenters' opinions, unless the reduced postentry quarantine period and the systems approach would encourage legal importation of those articles that are currently imported without complying with our regulations, the perceived additional risk of reducing the postentry quarantine period would not be warranted.

As discussed earlier, our decision to reduce the postentry quarantine period for imported articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum is supported by science; it is not motivated by the goal of reducing illegal trade of those articles. We do not believe that providing an option in which the postentry quarantine period for imported articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum is reduced to 2 months will increase the risk of allowing a plant that is infected with CWR to enter U.S. commerce, especially if the plants are produced in compliance with the requirements of systems approach.

It is important to note that the postentry quarantine restrictions placed on CWR hosts in the regulations apply to the importation of CWR hosts from countries where CWR is not known to occur. We prohibit the importation of CWR hosts from countries where CWR is known to occur in § 319.37-2(a). CWR has not been detected in any host plants Start Printed Page 44428imported under the current postentry quarantine program in the last 10 years. We believe the introductions of CWR that the commenter cites were the result of illegal importations. We are continuing to work through our Smuggling Interdiction and Trade Compliance program and with the Department of Homeland Security's Bureau of Customs and Border Protection to prevent such introductions.

Because the option we are proposing would reduce the postentry quarantine period to the time actually required for expression of symptoms while imposing additional phytosanitary safeguards on the production of CWR host materials, we believe the program we are proposing here would be as effective as our current program.

Two commenters suggested that APHIS issue a departmental permit to allow a reduction in the postentry quarantine period.

Departmental permits are issued under § 319.37-2(c) and provide for the importation of articles that are listed as prohibited under paragraphs (a) and (b) of § 319.37-2 for experimental or scientific purposes; APHIS may specify conditions for such importation that are adequate to prevent the introduction into the United States of plant pests. However, articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that are eligible to be imported under postentry quarantine conditions are, by definition, not prohibited articles. Therefore, using the departmental permit to facilitate their importation in this way would not be appropriate. In addition, the departmental permit is intended for us only to allow importation for experimental or scientific purposes.

Systems Approach for Articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum Imported Into the United States

As many commenters noted, our explanation of the best management practices program cited in the December 2005 proposed rule did not make clear whether the program would be applied to imported articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum during their growth in their country of origin or to their growth during postentry quarantine. Many commenters interpreted our description of the best management practices program to mean that it would apply to the growth of these articles during postentry quarantine, and objected to the increased responsibility placed on Federal and State entities to monitor postentry quarantine under the conditions of the best management practices program. Some of these commenters further stated that a program to prevent the articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum from being infected with CWR while being grown in the country of origin, prior to importation into the United States, would be more effective, both in terms of cost and in terms of phytosanitary security.

We agree with these comments. We had intended for the best management practices program described in the December 2005 proposal to apply to the growth of these plants in the country of origin, and the systems approach we are proposing to require as a condition of reducing the postentry quarantine period from 6 to 2 months would also apply to the growth of articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum in their country of origin. In this proposal, we have revised the requirements of the systems approach in order to make it clear that they would apply to growth in the country of origin.

In order to be eligible for participation in this program, the articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum would have to be grown in a production site that is a greenhouse or other enclosed building. The proposed systems approach would specify several basic requirements to be fulfilled during the production of those articles and prior to their importation to the United States. These requirements are the following:

Production sites would have to generate plants for planting from propagative material that is free of CWR.

Production sites would have to write and implement standard operating procedures that include provisions for adequate pest control, isolation of the production site from host material not intended for export to the United States, regular inspection and testing, and training of production site employees.

Production sites would have to keep detailed records of all aspects of plant production, including the origin of articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that will be exported so that they may be traced back if necessary. Production sites would have to label the containers in which the articles are shipped in order to facilitate traceback investigations.

The national plant protection organization (NPPO) of the country in which the production site is located would have to oversee the production site and perform regular audits to ensure that all elements of the production system are in compliance with the requirements of the systems approach and the workplan.

APHIS would have to be allowed to perform on-site audits of the production site as well. APHIS would also perform audits at the port of entry into which the plants are imported to ensure that these articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum meet the requirements of the systems approach and the workplan.

The NPPO of the country in which the production site is located and APHIS would impose penalties and remedial actions in the case of noncompliance. The NPPO would not issue phytosanitary certificates for shipments of articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum exported under the systems approach if an audit revealed that the articles were not grown in compliance with the requirements of the systems approach and the workplan. Penalties that could be imposed would include, but would not necessarily be limited to, removal of the exporting production site from the list of growers approved by APHIS to ship these articles to the United States under this program.

The government of the country in which the articles are produced or its designated representative would have to enter into a trust fund agreement with APHIS before each growing season. The government of the country in which the articles are produced or its designated representative would have to pay in advance all estimated costs that APHIS expects to incur through its involvement in overseeing the execution of the systems approach. (The specific level of APHIS involvement will vary with the terms of the workplan; APHIS involvement may range from regular inspections of production sites to occasional on-site audits.) Details on this requirement can be found in the proposed regulatory text at the end of this document.

Two commenters on the December 2005 proposal asked to review the program we described in that rule. We are not proposing to add specific phytosanitary requirements to the regulations. Instead, we are proposing to set out the performance standards in the regulations. If this rule is finalized, the NPPO of a country that wishes to export articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum to the United States for a postentry quarantine Start Printed Page 44429growing period of 2 months (rather than 6 months) would submit to us a detailed proposal for operational plans and procedures that fulfill the performance standards. We would then work with the NPPO of the exporting country to agree upon a final set of operational plans and procedures, which would be codified in a bilateral workplan.[2]
Thus, the regulations would require that the articles be produced in accordance with a workplan that meets the requirements of the systems approach, as listed in the regulations. We anticipate that the specific conditions required by a workplan will vary according to the conditions in the country and facility where the workplan is implemented, and as such we do not have a single workplan that we can make available.

The changes discussed in this proposal would reduce the cost of postentry quarantine for importers of articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum while continuing to protect against the introduction of CWR into the United States.

Proposed Amendments to the Regulations

In § 319.37-7, paragraph (d)(7)(ii) lists articles of Chrysanthemum spp., Dendranthema spp.,[3] Leucanthemella serotina, and Nipponanthemum nipponicum, articles of Dianthus spp., and articles of Hydrangea spp. as articles for which a postentry quarantine growing period of less than 2 years is permitted. In the December 2005 proposal, we proposed to add articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum produced in accordance with a best management practices program to this list, with a 2-month postentry quarantine period.

In this document, we are proposing to amend the regulations in § 319.37-5(c). This paragraph presently requires that any restricted article (except seeds) of Chrysanthemum spp., Leucanthemella serotina, or Nipponanthemum nipponicum from any foreign place other than countries where CWR is known to occur shall, at the time of arrival at the port of first arrival in United States, be accompanied by a phytosanitary certificate of inspection containing a declaration that the article was grown in a greenhouse nursery and found by the NPPO of the country in which grown to be free from CWR. This finding must be based on visual examination of the parent stock, the articles for importation, and the greenhouse nursery in which the articles for importation and the parent stock were grown, once a month for 4 consecutive months immediately prior to importation. Imported articles of Chrysanthemum spp., Leucanthemella serotina, or Nipponanthemum nipponicum must satisfy this requirement in order to be eligible to enter the United States for postentry quarantine. We would move these current requirements into paragraph (c)(1) and add the systems approach requirements described earlier in a new paragraph (c)(2).

In § 319.37-7(d)(7)(ii), we would break up the list of articles eligible for postentry quarantine of less than 2 years into subparagraphs for ease of reading.

Under this proposal, paragraph (d)(7)(ii)(A) of § 319.37-7 would indicate that an article of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that meets the requirements of § 319.37-5(c)(2) would be required to be grown in postentry quarantine for 2 months.

Paragraph (d)(7)(ii)(B) would state that an article of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that meets the requirements of § 319.37-5(c)(1) would be required to be grown in postentry quarantine for 6 months.

Paragraphs (d)(7)(ii)(C) and (d)(7)(ii)(D) would contain the current language regarding articles of Dianthus spp. and Hydrangea spp.

Other Comments on the December 2005 Proposal

Two commenters on the December 2005 proposal suggested that APHIS include provisions for a trust fund. The commenters suggested that the fund could be used to properly administer the current CWR regulations and monitor for the disease, and to help defray the cost of eradication when outbreaks occur.

We provide for trust funds in the regulations when the regulations require that APHIS provide services to foreign growers, such as monitoring or certification. The trust fund that would be required for the implementation of the systems approach for CWR in this proposal is one example. We do not use trust funds as a means of providing insurance against the introduction of a disease. APHIS will continue to enforce the regulations governing the importation of all articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum and to survey for signs of CWR infection in plants in the United States in cooperation with State governments.

One commenter, the Netherlands Ministry of Agriculture, Nature, and Food Quality (the Netherlands NPPO), noted that importation of articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum from the Netherlands (as well as the rest of Europe) is prohibited under § 319.37-2(a). The Netherlands NPPO asked that APHIS recognize the European Union (EU) Directive 2000/29, Annex IV-A-II, item 21.1, which requires propagative material of Chrysanthemum spp. to be regularly inspected during the growing season and to be inspected prior to export. The commenter also noted that the Netherlands NPPO is not aware of CWR ever having been detected on Chrysanthemum spp. cuttings exported from the Netherlands. The commenter stated that articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum from the Netherlands that are produced under the requirements of this directive should be admissible.

The commenter further noted that one grower in its country has a program in place that appears to satisfy the requirements of the best management practices program as we described it in the December 2005 proposed rule.

As the commenter noted, importation of articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum from the Netherlands is currently prohibited under § 319.37-2(a). The December 2005 proposal did not propose to change that, nor does this proposal.

The Netherlands has submitted a formal request for APHIS to evaluate the conditions provided under the EU directive and the conditions of these programs in place at the grower cited in the comment. APHIS will evaluate the request to determine whether articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum produced under these conditions should be either allowed to be imported subject to postentry quarantine or generally admissible. If the evaluation indicates that their importation should be allowed, we will Start Printed Page 44430publish a separate proposal to amend the regulations.

Definition of From

The definition of from in § 319.37-1 currently provides that an article is considered to be “from” any country or locality in which it was grown. The current regulations also provide that an article imported into Canada from another country or locality shall be considered as being solely “from” Canada if it is imported into the United States directly from Canada after having been grown for at least 1 year in Canada; has never been grown in a country from which it would be a prohibited article or from which it would be subject to special foreign inspection, certification, treatment, or other requirements; was not grown in a country or locality from which it would be subject to postentry quarantine requirements, unless it was grown in Canada under postentry growing conditions equivalent to those specified for the article in § 319.37-7; and was not imported into Canada in growing media.

In the December 2005 proposed rule, we proposed to replace this definition with a new definition of from, in order to remove the special provisions related to the importation of regulated articles from Canada. The proposed definition of from read: “An article is considered to be ‘from’ an exporting country or area when it was grown or propagated only in the exporting country or area, or when it was grown in the exporting country or area after it entered the exporting country or area from another country or area under conditions that are equivalent to those that would be required by the United States if the plant were imported into the United States directly from any of the countries or areas where the plant was grown prior to its entry into the exporting country or area.”

We received several comments on our proposed definition. Many of these commenters were concerned that the proposed definition might weaken our protections against the importation of potentially risky nursery stock. Three commenters asked us to clarify whether articles whose importation is prohibited from one country would continue to be prohibited even after importation to a second country, regardless of the time that the articles remained in the second country.

Some commenters expressed concern that the proposed definition would be difficult to enforce, since the NPPOs of exporting countries would have to keep track of any plant material that entered their country and that might be reexported at some point in the future, as well as any propagations of that plant material. Other commenters expressed general concern about whether the restrictions on the importation of nursery stock in general are adequate to prevent the introduction of plant pests, when it can be difficult to determine what pests a plant has been exposed to.

Based on these comments, we have rethought our proposed definition of from. While in theory it would make sense to provide that nursery stock that is imported into one country and then exported from that country to the United States must satisfy the same requirements that it would have to if it was imported directly into the United States, in practice such a requirement would be difficult to enforce. As an example, assume that Country A does not impose restrictions on the importation of Pelargonium spp. from Country B, but the United States allows Pelargonium spp. from Country A to be imported with a phytosanitary certificate with an additional declaration under § 319.37-5(r)(2) and requires Pelargonium spp. from Country B to be imported under the systems approach described in § 319.37-5(r)(3). In order for Country A to export Pelargonium plants to the United States, the NPPO of Country A would have to track all Pelargonium plants of foreign origin, even after they were legally imported, in order to be able to certify that any Pelargonium spp. exported from Country A to the United States were either not from Country B or were grown in accordance with a systems approach for which there would be no regulatory enforcement mechanism in place. This would be a logistically unfeasible task for the NPPO of Country A to undertake.

The International Plant Protection Convention's (IPPC) 2002 Glossary of Phytosanitary Terms (International Standards for Phytosanitary Measures [ISPM] publication number 5) [4]
takes a different approach to the issue. The Glossary of Phytosanitary Terms includes a definition of the term country of origin for consignments of plants that reads: “Country where the plants were grown.” (The IPPC definition of country of origin is thus functionally equivalent to the term from as it is used in our regulations.) The definition and the glossary do not provide any further guidance on how to determine what country that is or how long plants need to be growing in the exporting country, however, making it difficult for an importing NPPO to evaluate the risk associated with the plant material if it has previously been grown in a third country.

We are proposing a compromise. We would define the term from as follows: “An article is considered to be ‘from’ the country where it, or the plants from which the article was derived, was actively growing for at least 9 months immediately prior to export.” If the plant material did not meet this definition, the NPPO of the exporting country would not issue a phytosanitary certificate to accompany it; as a phytosanitary certificate is required for almost all imported nursery stock other than certain articles from Canada and small lots of seed, this would restrict the importation of those articles that have not been grown for 9 months in the country from which they would be exported.

We chose 9 months because it is a common length for a growing season for nursery stock; if a plant has been growing in a country for a full growing season, it is reasonable to assume that it poses the same potential pest risk as other plants of the same genus grown in that country. This definition would provide an enforceable standard.

We do not mean to minimize the problem of plants that originate in countries where the pest risk is high and are then re-exported to the United States through countries where the pest risk is lower. However, to refer again to the example discussed earlier, if Country A does not have restrictions on the importation of Pelargonium spp. from Country B, it would be difficult for the country to track those plants once they have been imported. Another solution would be simply to impose the same restrictions on the importation of Pelargonium spp. from Country A as we do on Pelargonium spp. from Country B, given that the importation restrictions in place in Country A make it difficult to determine which Pelargonium spp. exported from Country A may have originated in Country B and thus pose an elevated pest risk. We may pursue this avenue of regulatory action in the future. However, such regulatory action would be undertaken independent of our definitions of the word from.

Executive Order 12866 and Regulatory Flexibility Act

This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. Start Printed Page 44431

The Regulatory Flexibility Act requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions. Section 603 of the Act requires an agency to prepare and make available for public comment an initial regulatory flexibility analysis (IRFA) describing the expected impact of a proposed rule on small entities, unless the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. APHIS has prepared this IRFA in order that the public may have the opportunity to offer comments on expected small-entity effects of this proposed rule. We address here items as required by section 603(b) of the Act.

APHIS is proposing to amend the regulations on importing nursery stock by providing an option in which the postentry quarantine growing period for articles Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that are imported from certain locations would be reduced from 6 months to 2 months, provided that the grower of those plants has implemented a systems approach to prevent the imported articles from being infected with CWR.

PPQ has determined that imported chrysanthemums that might be affected with CWR are likely to express symptoms of this disease if it is present within a 2-month postentry quarantine period; the fact that the chrysanthemums would originate in countries not considered to be affected with CWR and would be grown in accordance with an APHIS-approved workplan that meets the requirements of the systems approach would reduce the likelihood that they would be infected with CWR. Articles identified in postentry quarantine as being infected with CWR are then prevented from entering U.S. commerce.

Under the Plant Protection Act (7 U.S.C. 8301et seq.), the Secretary of Agriculture is authorized to implement programs and policies designed to prevent the spread of plant pests and diseases. The objective of this proposed rule is to provide another option for importation of chrysanthemums that is based on current science and does not compromise the phytosanitary safety of U.S. floral plants.

This proposed rule may affect the volume of chrysanthemums imported into the United States because some importers may find that the reduction of costs due to the shortened postentry quarantine period will be greater than the additional cost for chrysanthemums produced under the systems approach. These reduced costs would then encourage a greater volume of importation. We expect that this will occur.

The economic effects of the proposed change are expected to be positive, if small, for U.S. importers of chrysanthemums into the United States. In 2005, the value of imported chrysanthemums was around $80.2 million, or 8 percent of the value of all imported flowers (i.e., fresh cut flowers and florist plants).[5]
In the same year, the wholesale value of the domestic sales of chrysanthemums reached $210.8 million.[6]

The shorter postentry quarantine period for imported chrysanthemums may benefit U.S. importers/wholesalers and florist retailers. The proposed change would reduce the cost to chrysanthemum importers (categorized within North American Industry Classification System [NAICS] code 424930), and those savings may be at least partially passed along to retailers of these plants (NAICS code 453110). The Small Business Administration (SBA) has established size standards for determining which economic entities meet the definition of a small firm. The small-entity size standard for importers/wholesalers of flowers, nursery stock, and florists' supplies is 100 or fewer employees. For retail florists, the small-entity size standard is $6.5 million or less in annual sale receipts.

According to the 2002 Economic Census, there were approximately 4,854 wholesale establishments importing flowers, nursery stock, and florists' supplies, and they employed 59,954 people. All but four of these establishments were likely small entities.[7]
According to the same census, there were 22,750 retail florist establishments with total annual sales of $6.63 billion in 2002. Their size distribution is not reported. Both wholesale and retail entities, regardless of their size, would benefit from the shorter quarantine period, but we are unable to determine the size of the benefit.

APHIS welcomes information that the public may provide concerning the expected magnitude of the benefit of the proposed rule and the number of small entities that may be affected.

The proposed change to amend the definition of from is administrative in nature. We do not expect that it would have any impact on any U.S. entities, whether small or large.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

Paperwork Reduction Act

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. 03-002-4. Please send a copy of your comments to: (1) Docket No. 03-002-4, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, room 404-W, 14th Street and Independence Avenue SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

We are proposing to provide an option in which the postentry quarantine growing period for articles Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that are imported from certain locations would be reduced from 6 months to 2 months, provided that the grower of those plants has implemented a systems approach to prevent the imported articles from being infected with CWR. This would require the use of bilateral workplans and phytosanitary certificates.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping Start Printed Page 44432requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency s functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden: Public reporting burden for this collection of information is estimated to average 45.1 hours per response.

Respondents: Importers of nursery stock and NPPOs.

Estimated annual number of respondents: 7.

Estimated annual number of responses per respondent: 1.4285714.

Estimated annual number of responses: 10.

Estimated total annual burden on respondents: 451 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

E-Government Act Compliance

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 734-7477.

(c) Any restricted article (except seeds) of Chrysanthemum spp. (chrysanthemum, includes Dendranthema spp.), Leucanthemella serotina, or Nipponanthemum nipponicum, from any foreign place except Andorra, Argentina, Australia, Belarus, Bosnia and Herzegovina, Brazil, Brunei, Canada, Canary Islands, Chile, China, Colombia, Croatia, Ecuador, Iceland, Japan, Korea, Liechtenstein, Macedonia, Malaysia, Mexico, Moldova, Monaco, New Zealand, Norway, Peru, Republic of South Africa, Russia, San Marino, Switzerland, Taiwan, Thailand, Tunisia, Ukraine, Uruguay, Venezuela, Yugoslavia; the European Union; and all countries, territories, and possessions of countries located in part or entirely between 90° and 180° East longitude must, at the time of arrival at the port of first arrival in United States, be accompanied by a phytosanitary certificate of inspection containing one of the following declarations:

(1) A declaration that such article was grown in a greenhouse nursery and found by the plant protection service of the country in which it was grown to be free from white rust of chrysanthemum (caused by the rust fungus Puccinia horiana P. Henn.) based on visual examination of the parent stock, the articles for importation, and the greenhouse nursery in which the articles for importation and the parent stock were grown, once a month for 4 consecutive months immediately prior to importation; or

(2) A declaration that such article was grown in a production site that is a greenhouse or other enclosed building and in accordance with an APHIS-approved operational workplan that contains provisions for fulfilling the systems approach requirements listed below. The systems approach requirements are:

(i) Production sites must generate plants for planting from propagative material that is free of chrysanthemum white rust (Puccinia horiana Henn.).

(ii) Production sites must write and implement standard operating procedures that include provisions for adequate pest control, isolation of the production site from host material not intended for export to the United States, regular inspection and testing, and training of production site employees.

(iii) Production sites must keep detailed records of all aspects of plant production, including the origin of articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that will be exported so that they may be traced back if necessary. Production sites must label the containers in which the articles are shipped in order to facilitate traceback investigations.

(iv) The national plant protection organization of the country in which the production site is located must oversee the production site and perform regular audits to ensure that all elements of the production system are in compliance with the requirements set out in this paragraph (c)(2) and in the workplan.

(v) APHIS must be allowed to perform on-site audits of the production site as well. APHIS will perform audits at the port of entry into which the plants are imported to ensure that these articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum meet the requirements set out in this paragraph (c)(2) and in the workplan.

(vi) The national plant protection organization of the country in which the production site is located and APHIS will impose penalties and remedial action in the case of noncompliance. The national plant protection organization may not issue phytosanitary certificates for shipments of articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum exported under the systems approach if an audit reveals that the articles were not grown in compliance with the requirements set out in this paragraph (c)(2) and in the workplan. Penalties that could be imposed will include, but may not necessarily be limited to, removal of the exporting production site from the list of growers approved by APHIS to ship these articles to the United States under this program. Start Printed Page 44433

(vii) The government of the country in which the articles of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum are produced or its designated representative must enter into a trust fund agreement with APHIS before each growing season. The government of the country in which the articles are produced or its designated representative is required to pay in advance all estimated costs that APHIS expects to incur through its involvement in overseeing the execution of this paragraph (c)(2). These costs will include administrative expenses incurred in conducting the services enumerated in this paragraph (c)(2) and all salaries (including overtime and the Federal share of employee benefits), travel expenses (including per diem expenses), and other incidental expenses incurred by the inspectors in performing these services. The government of the country in which the articles are produced or its designated representative is required to deposit a certified or cashier's check with APHIS for the amount of the costs estimated by APHIS. If the deposit is not sufficient to meet all costs incurred by APHIS, the agreement further requires the government of the country in which the articles are produced or its designated representative to deposit with APHIS a certified or cashier's check for the amount of the remaining costs, as determined by APHIS, before the services will be completed. After a final audit at the conclusion of each shipping season, any overpayment of funds would be returned to the government of the country in which the articles are produced or its designated representative or held on account until needed.

* * * * *

4. Section 319.37-7 is amended by revising paragraph (d)(7)(ii) to read as follows:

(ii) If an article of a genus or species listed in this paragraph, to grow the article or increase therefrom only in a greenhouse or other enclosed building for the period listed below:

(A) If an article of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that meets the requirements of § 319.37-5(c)(2) of this subpart, for a period of 2 months after importation.

(B) If an article of Chrysanthemum spp., Leucanthemella serotina, and Nipponanthemum nipponicum that meets the requirements of § 319.37-5(c)(1) of this subpart, for a period of 6 months after importation.

(C) If an article of Dianthus spp. (carnation, sweet-william), for a period of 1 year after importation.

(D) If an article of Hydrangea spp., for a period of 9 months after importation.

3.
The April 2007 final rule referred to earlier was intended to remove all references to Dendranthema spp. within the text of the regulations but inadvertently did not remove the reference in this paragraph. In this proposed rule, we would correct that error.